C v POLICE No. SCGRG-98-223 Judgment No. S140

[1999] SASC 140

C v POLICE

[1999] SASC 140
Magistrate’s Appeal
1 MARTIN J. (Ex tempore)             This is an appeal against the decision of the magistrate sitting in the Youth Court that the appellant should serve a period of detention in a detention centre following a breach of a previous home detention order. 
2 On 3 December 1998, in the Youth Court sitting at Adelaide, the appellant pleaded guilty to a charge of receiving and was ordered to serve a period of four months home detention commencing that day.  A number of conditions were attached to the order, including that the appellant be of good behaviour throughout the period of home detention and obey the lawful directions of the home detention officer during that period.
3 On 10 February 1999, the appellant appeared before the magistrate in the Youth Court sitting at Adelaide, charged with possessing cannabis and possessing equipment for use in connection with cannabis.  During the course of that appearance, from the body of the court the home detention officer assigned to supervise the appellant advised the court that the appellant had been less than diligent and had breached his home detention conditions.  His Honour indicated he was unable to take any action as no written application alleging a breach of a home detention order was before him.  The following day an application was made alleging a breach of the home detention order, in support of which the home detention officer swore an affidavit.  That application came before the magistrate on Friday, 12 February 1999.  The appellant was unrepresented.
4 The affidavit of the home detention officer disclosed that on 11 January 1999, during a home visit by home detention staff, the appellant admitted to using marijuana during the period of home detention.  He was given a strong warning and an opportunity of assistance to address drug dependency issues.  A drug test taken 10 days later returned a positive result for marijuana and amphetamines.  On 25 January 1999 a formal warning was issued for substance abuse.  A further random drug test was taken on 1 February 1999, which unfortunately again returned a positive result for marijuana and amphetamines.  The officer deposed that the appellant had failed to attend the Elura Clinic for drug counselling as arranged on 8 February 1999.  A home visit on 9 February revealed him to be in an allegedly drug-affected state.  Although a worker had been assigned to assist the appellant to pursue recreational or employment and training options, the arrangement was cancelled because the appellant failed to keep appointments, citing either he was too tired or had friends coming over. 
5 The officer expressed the opinion that the appellant did not receive the necessary parental support to assist him through a home detention sentence and that on many occasions the house was inundated with visitors.  The appellant had not obeyed the lawful directions of home detention staff and had not been of good behaviour during the period of home detention.
6 The material contained in the affidavit was confirmed by evidence on oath given by the home detention officer before the magistrate on 12 February 1999.  As to the alleged drug affected state observed on 9 February 1999, the officer explained that the appellant appeared to be under the influence of some drug or alcohol because his eyes were closed and speech slurred. 
7 The transcript records that the appellant was invited to ask questions but declined.  His Honour found that there had been breaches of the home detention conditions through positive drug tests and non-compliance with other requirements of the home detention order as set out in the affidavit and the evidence of the officer.  He referred to the lack of cooperation with the home detention officer.  His Honour directed that the appellant serve the balance of the period of four months home detention in a detention centre commencing forthwith.
8 The grounds of appeal complain that the appellant was not afforded any natural justice or procedural fairness. The grounds refer to the lack of legal representation and allege that the appellant was not afforded any or a reasonable opportunity to secure legal representation. In addition, it is said that the magistrate did not have any jurisdiction to make the findings and order and that he failed to exercise the discretions available pursuant to s37C of the Young Offenders Act 1993.
9 The appellant has filed an affidavit deposing to a number of matters of significance.  First, he says he was not served with any written application but was told by telephone that his attendance was required at court.  Secondly, he said he was taken to court by a home detention officer who told him that he would not need a lawyer.  Finally, he deposes to a recollection that at court the magistrate did not explain what was happening and did not ask if he wanted legal representation.  He says he was not asked to enter a plea of guilty or not guilty.
10 In this Court, counsel for the respondent addressed first suggesting that it might be appropriate to obtain a report from the magistrate as to the proceedings. In particular it was suggested that an inquiry should be made of the magistrate as to whether the conditions set out in s8 of the Youth Court Act 1993 were complied with in the sense that an explanation was given to the appellant to ensure that he understood the nature and purpose of the proceedings. Alternatively, it was suggested that the matter should be remitted to the magistrate for further hearing.
11 Mr Mancini, who appeared for the appellant, suggested it was not appropriate to return the matter to the Youth Court because the youth had been in custody for two weeks before he was granted bail and bail was on such stringent terms that it was almost equivalent to home detention. He said the consequences of the breach of the order, if there be a breach, had in effect already been visited upon the appellant. He argued there was no criminal conduct and, to the extent the evidence discloses any breach of the condition requiring that the appellant obey the lawful directions of the home detention officer, it appeared those directions had not been given in writing and were, therefore, unlawful. It was submitted that s37B of the Young Offenders Act requires the directions to be given in writing. For present purposes it is not necessary to decide whether the only directions that can be given must be given in writing.
12 Counsel did not dispute that the use of the substances marijuana and amphetamines would amount to a breach of the condition that the appellant be of good behaviour during the period of home detention.  He suggested, however, that a real question might arise as to the lawfulness of the tests and the admissibility of the evidence.
13 Section 8 of the Youth Court Act required the court, as far as practicable, to ensure that the appellant understood the nature and the purpose of the proceeding. If the affidavit of the appellant is accepted, it appears that the court did not undertake the appropriate inquiry in that regard. I did not, however, have before me any evidence from the prosecution or the magistrate as to what occurred at the outset of the proceedings. The transcript has not given me assistance in this regard.
14 Importantly, the appellant was legally represented on 10 February 1999 and the court indicated that it could not deal with a breach of a home detention order because there was no written application before it.  When the application was made the following day, no effort was made to advise the appellant's legal representative and the appellant's representative was not told that the appellant was required to appear in court on 12 February 1999.  If the appellant is accepted, the court did not make any effort when he appeared before it to enquire whether he wanted legal representation. 
15 The transcript of the proceedings before the magistrate indicates that the appellant was invited to ask questions of the home detention officer, but declined to do so.  It then records that 'the defendant made no submissions'.  Presumably the magistrate asked the appellant whether he had any submissions. 
16 Section 37(c) of the Young Offenders Act empowers the court to revoke an order for home detention if it is satisfied that the youth serving the sentence of home detention has breached a condition to which the home detention was subject. If the order is revoked on the ground of a breach of condition, sub-s(5) empowers the court to sentence the youth to detention for a term not exceeding the balance of the period of home detention unexpired as at the date on which the breach occurred.
17 While the Young Offenders Act does not specify any procedure to be followed upon the application for revocation of a home detention order, bearing in mind the nature of the jurisdiction and the laws generally with respect to young offenders, in my opinion there was an obligation on the court to ensure that the procedures were fair to the appellant and that he was given an adequate opportunity to obtain representation and respond to the proceedings. The whole tenor of s37C and the procedure necessarily envisaged by that section speaks of the application of the usual rules of natural justice and fairness.
18 On the material available to me, in my opinion the procedures followed were unsatisfactory.  Notwithstanding the apparent strength of the case for revocation, in the relevant sense a miscarriage of justice has occurred.  On that basis I would allow the appeal. 
19 I have decided in these circumstances not to obtain a report from the magistrate and, in allowing the appeal, I recognise that I have not had the benefit of information from that source. 
20 As to the question of whether the matter should be remitted back to the magistrate to be dealt with in a manner which provides full procedural fairness to the appellant, in my opinion it is not appropriate for me to enter into a judgment at this time on the material available to me as to whether colloquially speaking, enough is enough.  I have no information as to the affect of the two weeks spent in custody before bail was granted.  Counsel for the appellant suggested that it was proper to infer the message had been driven home to the appellant, but I am not in a position to draw any such inference.  I have no information as to how he reacted.  Nor do I have any information as to whether it might be appropriate to reconsider the revocation in view of the time spent in custody and the period subject to stringent bail conditions.  These are matters that are properly to be considered by the Youth Court if a decision to revoke is made. 
21 A submission has also been made on behalf of the appellant that the magistrate did not have jurisdiction to deal with the application. The order for home detention was made by a judge of the Youth Court in respect of the offence of receiving contrary to s196(1) of the Criminal Law Consolidation Act 1935.
22 Counsel for the appellant has referred to the hierarchical structure of the Youth Court and various sections of the Young Offenders Act which empower the court to exercise criminal jurisdiction in a manner similar to the Magistrates and District Courts. In particular s22(1)(b) provides that subject to other sections in the particular division of the Young Offenders Act, the Youth Court has the same powers of sentencing in respect of an indictable offence as the District Court.
23 While acknowledging that s37C of the Young Offenders Act contemplates that the Youth Court can determine whether a youth has breached a condition of the home detention and revoke an order for that home detention, counsel for the appellant submitted that a magistrate of the court is not empowered to do so in respect of a home detention imposed for an indictable offence or where the sentence was imposed by a judge of the Youth Court. In essence he argued this would be tantamount to a lower court estreating a bond imposed by a superior court. In support counsel referred to various provisions of the Criminal Law (Sentencing) Act 1988.
24 The difficulty facing that submission is the obvious wording of s37C of the Young Offenders Act. That section provides that 'the court' may vary the order and exercise the powers contained in s37C.
25 Section 4 of the Young Offenders Act defines 'court' as meaning the Youth Court of South Australia. The provisions of the Young Offenders Act and the Youth Court Act prevail where there is any conflict with the Sentencing Act, (s3(a) of the Sentencing Act). In addition, subject to certain restrictions that are not relevant for present purposes, s14 of the Youth Court Act provides that 'the court when sitting to adjudicate on any matter must be constituted of a judge or magistrate'.
26 It is clear that parliament contemplated that a judge or a magistrate would exercise the powers contained in s37C regardless of whether the original home detention order was imposed by a judge or a magistrate. In my opinion there is no substance in the proposition that a magistrate of the Youth Court has no jurisdiction to entertain the application and that only a judge of that court has such jurisdiction.
27 For the reasons given the appeal is allowed and the application for revocation of the home detention order is remitted back to the Youth Court for further hearing in accordance with these reasons.